Mr C Carranza v ISS Mediclean Limited — 2019

Mr Carranza was employed by ISS Mediclean Ltd as a healthcare cleaner from July 2011. In August 2019 he requested annual leave from 5 August to 9 September 2019 to travel to Peru after his mother was admitted to hospital. The request was refused because the respondent said many employees already had leave booked, and Mr Carranza was warned that absence could be a disciplinary issue. He nevertheless travelled to Peru, did not attend work from 5 August 2019, and was dismissed by letter dated 23 August 2019 for absence without leave.

The automatic unfair dismissal complaint under ERA 1996 ss.57A and 99 was dismissed. The tribunal accepted that Mr Carranza's mother was a dependant and that he told the respondent the reason for, and expected length of, his proposed absence. Applying the Qua questions, it found that his absence was not necessary to provide immediate assistance when his mother fell ill or to arrange care: she had already been admitted to hospital, siblings were available, and he did not tell the respondent that he intended to provide personal care or arrange care. The tribunal found the reason for dismissal was unauthorised absence, not protected time off under s.57A.

The ordinary unfair dismissal complaint was also dismissed. The tribunal found that Mr Soares dismissed Mr Carranza for a conduct reason, namely absence from work when he knew the leave request had been refused. It found the initial disciplinary procedure unreasonable because the respondent proceeded with the hearing in Mr Carranza's absence when it was probable he was abroad and the requested return date was known. However, it found that Mr Hudson conducted a fair and thorough appeal, gave Mr Carranza and his representative the opportunity to make the arguments they would have made at a postponed disciplinary hearing, sought further documents, and reached a decision within the band of reasonable responses. The appeal cured the earlier procedural defects.

The breach of contract claims were dismissed. On notice pay, the tribunal found that Mr Carranza deliberately failed to attend work despite knowing the respondent had refused the absence and warned of possible dismissal, and that he did not keep his manager informed during the absence. It concluded that he repudiated the contract and the respondent accepted that repudiation by terminating it. On holiday pay, the tribunal found a binding concession that the contractual holiday pay claim had been settled, refused to allow the concession to be withdrawn, and stated that the claim would in any event have failed because the claimant's contractual entitlement was to holiday pay based on 15 contracted hours per week. No monetary award was made.